The division within the top judiciary and Pakistan’s worsening predicament

A reckless power struggle in Pakistan seems to have now sucked the country’s top judiciary inside, raising fears of a systemic collapse. With the country facing an economic meltdown and the democratic political process incapacitated, the divide within the supreme court is alarming. 

The long-simmering conflict within the top judiciary came out into the open last week when some dissenting judges challenged the chief justice’s authority to take suo motu actions and called for ending what they described as a “one man show.” The dissent took a more serious turn when two judges refused to sit on the bench hearing a petition against the postponement of polls in Punjab and Khyber Pakhtunkhawa (KP) provinces by the Election Commission (EC) in violation of court orders. 

Last month the Supreme Court had ordered the EC to hold elections within the stipulated time of 90 days of the dissolution of the two provincial assemblies.  That was dissolved in January this year. The EC initially set April 30 as polling day for the Punjab provincial assembly, but suddenly the date was changed to October 8. A five-member bench headed by the chief justice was constituted to hear the petition filed by the opposition PTI. But the bench fell apart after the recusal of two members of the bench. 

In fact, the controversy started when the chief justice took a suo motu action to set the election date for the two provinces. Four judges of the bench questioned the validity of the CJ’s action of his own accord. It may not be unusual for judges to have differences of opinion but the remarks made by the dissenting judges was beyond the norm. 

The scathing remarks made in the dissenting note was seen as a damning indictment of the chief justice from his fellow judges. The revolt within has thrown the apex court into chaos and turned the entire case upside down. The split has made the proceedings controversial, with rival political parties siding with one faction of the judges or the other. 

It may be true that the concentration of authority in the office of the chief justice has created distortions and raised doubts about the fairness of the judicial system, but the government’s move to change the rules has further complicated the situation.

Zahid Hussain

The chief justice’s decision not to go for a full court on critical constitutional issues has created doubts in the minds of many over the impartiality of the top judge and widened the cleavage within the institution. Some judges have also expressed their concerns about the CJ’s move to keep out the senior-most judges from the benches hearing cases on important constitution matters.

Almost half of the 15 members of the supreme court seem to have turned against the chief justice, demanding that his absolute power to constitute benches be curtailed. The unprecedented public polemics among the judges has greatly damaged the credibility of the apex court. 

It is not for the first time that the process of the formation of benches and the absolute power exercised by the top judge have been questioned, but the current divide shows a complete breakdown in institutional working. The increasing tendency of taking suo motu notice of political issues has drawn criticism from both judges and lawyers. 

It may be true that the concentration of authority in the office of the chief justice has created distortions and raised doubts about the fairness of the judicial system, but the government’s move to change the rules has further complicated the situation. Last week, the parliament passed a bill taking away the power of the CJ to unilaterally take suo motu action.  The opposition has described the move as unlawful and an attempt to bring the court under pressure.  Most legal experts maintain that the change of the rule should have been left to the Supreme Court itself. 

Indeed, the collapsing democratic process and persisting political deadlock have made the court a battleground for the two major rival parties. That has also drawn the court into political controversy, with each party expecting a ruling in its favour. It is then not surprising to see the judges become targets of criticism by those who disagree with their verdict.

Moreover, judges playing the role of arbiter on political disputes has its perils, making the judiciary appear controversial and further eroding the rule of law. The current political polarization also requires the judiciary not to extend its mandate or play the role of arbiter in the power game. 

The latest controversy involving the country’s top judiciary has given a vicious twist to the ongoing power struggle between the ruling coalition and the opposition led by former prime minister Imran Khan , diminishing any hopes of the deadlock between the two sides being resolved. 

What is more alarming is the clash of institutions and friction within. The consequent erosion of the writ of the state has worsened Pakistan’s systemic crisis. It is an extremely alarming situation for a nuclear armed nation. 

- Zahid Hussain is an award-winning journalist and author. He is a former scholar at Woodrow Wilson Centre and a visiting fellow at Wolfson College, University of Cambridge, and at the Stimson Center in DC. He is author of Frontline Pakistan: The struggle with Militant Islam and The Scorpion’s tail: The relentless rise of Islamic militants in Pakistan. Frontline Pakistan was the book of the year (2007) by the WSJ. His latest book ‘No-Win War’ was published this year. Twitter: @hidhussain